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Name, Image, Likeness Legislation Moving Fast with Power 5 Push

August 20, 2020

The NCAA Board of Governors took a major step in late April toward compensating student-athletes for their name, image and likeness (NIL). That step was to place support in the rule change that would “allow student-athletes to receive compensation for third-party endorsements both related to and separate from athletics.” Nearly three months later, we have a little clarity of what the legislation for NIL might look like. At least from a Power 5 perspective.

The proposed legislation, called the Student-Athlete Equity Act of 2020, was put together by the NCAA’s Power 5 conferences (and is not representative of all Division I programs) and presented at Wednesday’s Senate hearing on “Protecting the Integrity of College Athletics.” Sports Illustrated received a draft of the NIL legislation on Friday, July 17, which highlighted a number of restrictions.

Here’s a quick look at some of those restrictions:

  • An athlete cannot benefit from NIL deals until their second semester of college
  • Schools would be permitted to deny some NIL deals
  • NIL contracts would be made public

As for why some deals could be denied, universities would have the power to “prevent student-athletes from entering into endorsement agreements that violate standards or that conflict with insitutional sponsorship agreements.” In Nebraska’s case, the Huskers could hypothetically prevent a student-athlete from entering into a deal with Nike or Coca-Cola under this proposed legislation. Since Nebraska has insitutional sponsorship agreements with Adidas and Pepsi, the ability to deny a student-athlete from taking a deal with a competitor could prevent any tension with major university sponsors.

For anyone following the news surrounding name, image and likeness deals of college athletes, the Power 5 timeline may feel expedited. That’s because it is. When the NCAA Board of Governors made its first step toward NIL legislation in April, it expected to draft legislation by Oct. 31, 2020, and then take a formal vote on Jan. 31, 2021 at the next NCAA convention. If approved, the legislation would then go into effect for the 2021-22 school year.

However, the Power 5 conferences asked Congress to move forward with federal legislation quicker than the NCAA was moving with it. In a letter from the Power 5 commissioners that was penned in late May, Congress was asked to put “a uniform national standard” in place that would supersede any state NIL laws and “appropriately protect student-athletes and provide clear rules governing NIL licensing.”

Sen. Marsha Blackburn (R-Tenn.), who sits on both the Judiciary and Commerce committees, spoke with Sports Illustrated about the new legislation drafted by the Power 5 conferences.

“I think [the Power 5 conferences] are probably as frustrated with the NCAA as everybody else,” Blackburn said. “We do need to have something that will exercise preemption so you don’t have every state with a different set of rules.”

The Power 5 conferences want a “Certification Office” within the Federal Trade Commission that would license and regulate agents and advisors. The Student-Athlete Equity Act of 2020 would also preempt state law, preventing states from following independent guidelines. This is one thing the NCAA and Power 5 conferences agree on: a lack of federal legislation would mean states could dictate NIL legislation and use it to their advantage.

“Why wouldn’t every five-star go to Florida?” Rep. Mark Walker, a North Carolina Republican and author of a Congressional NIL bill that’s currently on hold, told Sports Illustrated in April. “They already have an advantage because of the weather.”

But it’s not just states like Florida who might have an advantage if federal legislation is not put in place. Nebraska, for example, is already ahead of the curve on name, image and likeness. The Husker volleyball team is one of the most followed and influential teams in the world, which could be put to use in recruiting.

That influence is both a blessing and a curse for Coach John Cook.

“Anyone that plays for Nebraska volleyball is going to have the greatest advantage of any other program because of our following,” Cook told Hail Varsity. “We’re the most followed volleyball team in the country so I think there is a huge advantage there for our players. We have players like Jordan [Larson] and Kelsey [Robinson] who have branded themselves, used social media to market themselves so our players follow them and follow all of the stuff that they do so I think that’s also a great example for them. It’s out there and they’re going to have the possibility of really taking advantage of that and earning extra income and doing some cool things.

“I’m worried about the distractions and the focus of being a student athlete, that’s hard enough. Now you have this third element that we’re all going to have to manage. The good thing is that at Nebraska, we’re ahead of the game. Opendorse with Blake Lawrence and Adi [Kunalic] have a great plan to help our players manage this and take advantage so we feel really good about that. We’ve had a couple of meetings with them and they’re excited. They have volleyball players right now that they represent and they can earn a lot of extra income by branding and marketing themselves.”

The partnership between Nebraska and Opendorse has a lot of potential, like Cook said. That doesn’t eliminate the unknowns, of course, but it provides some comfort as the Huskers navigate uncharted waters.

Wednesday’s meeting with Congress was two hours of back-and-forth between a handful of Senators and individuals like NCAA president Mark Emmert. We didn’t get much clarity for the future of NIL from Wednesday alone, although it did bring to light just how many questions have yet to be answered. Clemson athletics director Dan Radakovich was there to argue in favor of a national set of standards that would govern name, image and likeness for college athletes and prevent unequal recruiting by different state standards. Sen. Cory Booker (D-N.J.)—who played college football at Stanford—wasn’t so sure. Why should student-athletes be held to a certain standard while coaches in all conferences are able to make a variety of salaries?

As states continue to move toward their own NIL legislation—Nebraska just passed its own earlier last week—the need for answers will become more pressing. If Wednesday told us anything, it’s that no one is on the same page yet.

Committee chairman Sen. Lindsey Graham (R-S.C.) marked Sept. 15 as a target date for a bipartisan proposal on NIL legislation. That timeline is still much quicker than what the NCAA Board of Governors had originally proposed in April. What will things look like in a couple of months? It’s hard to say, but it’s clear that the opinions still vary at all levels. That’s even true for coaches like Cook, who will likely be keeping an eye on what the NCAA and Congress do in the coming months.

“Hopefully there is going to be some way that this could work and not be a distraction to the student athletes,” he said.

Time will tell.

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